Baptiste v. United States

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 19-61975-CIV-MORENO

10-60077-CR-MORENO

GARY BAPTISTE,

Movant, vs.

UNITED STATES OF AMERICA,

Respondent. _________________________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION AND GRANTING MOTION TO VACATE AS TO COUNTS 4

AND 5

THE MATTER was referred to the Honorable William Matthewman, United States Magistrate Judge, for a Report and Recommendation on Movant Gary Baptiste’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 filed on September 30, 2019. The Magistrate Judge filed a Report and Recommendation (D.E. 28) filed on January 8, 2021. The Court has reviewed the entire file and record. The Court has made a de novo review of the issues and notes that no party has filed objections to the Magistrate Judge’s Report and Recommendation and the time for doing so has now passed. Being otherwise fully advised in the premises, it is

ADJUDGED that United States Magistrate Judge William Matthewman’s Report and Recommendation is AFFIRMED and ADOPTED. Accordingly, it is

ADJUDGED that the Court VACATES the Movant’s conviction as to Counts 4 and 5 consistent with United States v. Davis, 588 U.S.__, 139 S. Ct. 2319 (2019). It is also ADJUDGED that the Court will hold a resentencing hearing as to Counts 1 and 6. The United States Probation Office is ordered to prepare a new pre-sentence investigation report (“PSI”) calculating the Movant’s guidelines range.

DONE AND ORDERED in Chambers at Miami, Florida, this 1‘ of February 2021.

FEDERICO A. MORENO

UNITED STATES DISTRICT JUDGE Copies furnished to:

United States Magistrate Judge William Matthewman

United States Probation Office

Counsel of Record